Intellectual Property
Week One (8.25.2008-8.29)
Class Notes
I. The Connection and Continuity Between Property and IP
a. What is Intellectual Property?
i. You can buy a work of art, but you cannot reprint the art itself
ii. Must negotiate the right to reproduce
iii. May have to negotiate for a piece of something (derivative)
iv. Performance Right – Distribution Right
b. Patent Law (about functional)
i. New process, item,
ii. Of a proper subject matter
iii. Useful
iv. Novel
v. Non-obvious at the time it was made to a person of ordinary skill in the relevant art?
vi. Stake a Claim à File a Patent Application
c. Trade Secrets (functional)
i. Google’s algorithm,
ii. Patent’s expire quickly
iii. It would be published
iv. Trade Secrets can last forever
v. Do not have to publish
vi. Doctrine of Equivalent
d. Trademarks
i. Makes things clear about what it is coming from
ii. Source designation, marketing, advertising purposes
iii. The Golden Arches, Coca-Cola, Ringling Bros, Barnum & Bailey
iv. Levi’s case
1. These jeans are selling for more, we are not trying to be Levi’s that are sold for $30
2. Also it is not identical in any matter
3. But they need to sue, to ensure continued protection
4. File App à Nature to be aggressive
e. Copyright (expression)
f. Unfair competition
i. False advertising, etc,
ii. First Amendment Issues,
g. Right of Publicity
i. Celebrity status for endorsements
II. Implications
a. Legal protection may be needed to promote intellectual creativity.
b. Raises First Amendment Issues
i. Fair Use Defense
c. Once created, there is little or no social cost of sharing intellectual creativity
III. Idea / Expression vs. Useful Article
a. Plot Story
i. Idea à Very abstract
ii. Expression à Very specific (West Side Story, Romeo and Juliet)
IV. Utiliatrian / Economic Incentives
a. Society’s Goal, “greatest happiness for the greatest number”
b. Const. Art I , Sec. 8 Cl. 8, Congress shall have the power “to promote the progress of Science and the useful arts, by securing for limited Times, to Authors and Inventors, the exclusive right to their respective Writings and Discoveries.
V. Innovation – Market Failure
a. Recouping R & D investment / risk
b. Many innovations are directly observable (lower than R & D)
c. Innovation reproducible at a much lower cost
d. Potential Market Solutions
i. Lead Time
ii. Secrecy
iii. Ancillary means of appropriating return on investment
VI. Responses to Abuse
a. Legislative
i. Can change the patent law
b. Executive
i. IRS: change practice rules
ii. USPTO: expertise, use better and more familiar attorneys, discern, could decide not to recognize cases all together
iii. Pure to patent à putting online controversial patents, show originality or not
c. Judicial
i. Can say things are not patent-able; inconsistent with legislators
VII. Harry Potter Example
a. Sequential Innovation
i. How much does the new innovator owe to the original inventor?
ii. In copyright, original expressor has a lot of rights, very powerful, relative to later people down the chair
iii. In Patent Law – later people can get blocking patents
VIII. Trips Treaty – Trade Related International Property Treaty?
IX. Jim Davis Parodies
a. Performance Right
b. Musical Right
c. Video Credits
d. Jim Davis Likeliness
e. Garfield Imitation
f. Evokes MTV
g. Does this represent Fair Use
Class Two 8.26.08
I. Dilemmas of the Innovator
a. Nobody knows the demand for a product
b. Experience goods need to be experienced, but sometimes it promotes infringement
c. Sunk cost is very high
d. IP rights are a way to induce investment
e. STANDING ON GIANTS – since the old IP to create new IP, rights can hinder the innovation, as much as they help it
II. Supply and Demand
a. Inter-relationships
i. IP as raw material
ii. IP as finished product
b. Elasticity
c. Unexpected Effects
III. INTRODUCTION TO COPYRIGHT
a. Any work of authorship fixed in a tangible medium of expression
i. Ideas are not protected
ii. But the form of expression is
b. Novelty requirement is minimal
c. Registration, but no examination
i. Deposit of Work
ii. Happens right away, as soon as its made
IV.
v. Selden (SCOTUS 1879)
a. Facts: Selden has copyright on a book, it is a ledger, some type of accounting procedure; the form dictates the function
b. Holding: That the method of book-keeping is not copyrightable
c. Reasons for Holding:
i. Treatises on cooking, medicine, potentially absurd results
ii. Merger Doctrine: only one way to express this idea; and if you could copyright that expression, you’d essentially copyright the idea
iii. Recall the defendant in the problem in the last class advanced a version of the merger doctrine
iv. The joy is the use of the art, the explanation
v. The use of the art is different that the publication of a book explaining it
vi. The book is a copyright than the art is the patent
vii. There is no patent on it
viii. You do not have a copyright to do the patented work
VII. Brandir v. Cascade
a. Facts: Had developed a sculpture
b. TESTS: Nimmer test: is there an aesthetic purpose separate for functional or utility purpose,
i. Seperability – belt buckle cases, does it have a function?
ii. Design Process – was it something before?
iii. Degree of Freedom – was it an aesthetic choice or dictated by function
c. Holding: Functionality is too linked to the aesthetic, they are interwoven into each other, and therefore, they are un-copyrightable
d.
e. Cases it was trying to reconcile
i. Barnhart: no copyright protection for mannequins
ii. Kieselstein-Cord: Copyright Protection for Buckles
VIII. Past Cases on Characters
a. Image characters get a lot more protection that merely verbal characters
b. In Stallone, both test are applied, not only the script, they have the movie itself
i. Courts look to see if the characters are “especially distinctive” oir “well delineated” as opposed to a “stock character”
c. Anderson v. Stallone
i. Holding (3 parts)
1. Rocky Characters – Rocky is copyrightable
a. Ensemble is copyrightable as a whole
